Miriam Muthoni Mahihu (Sued on Her Own Behalf and as Executor of the Estate of Eliud Muchoki Mahihu (Deceased) & 5 others v African Safari Club Limited [2013] KECA 337 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a High Court handover order, confirming a stay application needs both an arguable appeal and proof that execution would ruin the appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal raised several arguable points, including ownership of the suit properties, res judicata, conflicting rulings by courts of concurrent jurisdiction, and orders granted for matters not prayed for.
The court identified multiple arguable points: the pivotal question of ownership, whether the High Court judge dealt with matters res judicata the Petition, the diametrically opposed rulings of judges of concurrent jurisdiction, and the grant of orders for matters not prayed for. Given that only one arguable point suffices, the arguability limb was comfortably met.
Nugatory-prong of the rule 5(2)(b) test
Execution of the Industrial Court warrant and other pending claims against the respondent, together with the risk of the 6th applicant's eviction, could obliterate the substratum of the intended appeal and render its success nugatory.
The court weighed the competing interests: the respondent had been (albeit unlawfully) dispossessed, status quo orders kept the respondent out, and the 6th applicant remained in possession. If the respondent were restored, warrants of attachment arising from judgments against it could be executed, potentially leaving the appeal an empty shell if it succeeded. Applying the overriding objective, the nugatory limb was satisfied.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-prong limbs; satisfying only one limb does not avail the applicant.
- A single arguable point suffices to sustain an application under rule 5(2)(b).
- An arguable appeal need not be one that will succeed, only one deserving of the court's consideration.
- A judge has no power or jurisdiction to decide an issue which has not been pleaded unless the pleadings are suitably amended.
Court orders
#- 1.The orders issued by the High Court (Muriithi, J) dated 21st September 2012 be and are hereby stayed pending the hearing and determination of the intended appeal
- 2.The status quo be maintained in respect of this matter until the intended appeal is heard and determined
- 3.Costs shall be in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 586 of 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Attorney-General & another v Katiba Institute & 7 others (Civil Application E365 & E368 of 2021 (Consolidated)) [2021] KECA 166 (KLR)[2021] KECA 166 (KLR)19 Nov 2021
- Attorney-General & another v Katiba Institute & 7 others (Civil Application E365 & E368 of 2021 (Consolidated)) [2021] KECA 166 (KLR)[2021] KECA 166 (KLR)19 Nov 2021
- Usonik Farm Purchase Co-operative Society Ltd v Joan Abura & Lynette Dawa (As Administrators of the Estate of Isabella Akumu Abura (Deceased) [2019] KECA 158 (KLR)[2019] KECA 158 (KLR)21 Nov 2019
- A.B & another v R.B [2015] KECA 467 (KLR)[2015] KECA 467 (KLR)31 Jul 2015
Cite this brief
#Cite this brief
Caselaw, "Miriam Muthoni Mahihu (Sued on Her Own Behalf and as Executor of the Estate of Eliud Muchoki Mahihu (Deceased) & 5 others v African Safari Club Limited [2013] KECA 337 (KLR)", Case Analysis (2013). Civil Application 239 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/337/eng@2013-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.